Months after New York had become a global epicenter of the Covid-19 pandemic, state officials began quietly moving dozens of elderly men with underlying health conditions from prisons across the state to a facility close to the Canadian border.

The transfers, which began in June 2020, after the virus had spread widely and caused several deaths among the state’s incarcerated population and prison staff, were ostensibly intended to protect the most vulnerable from Covid-19. But defying both public health recommendations and common sense, prison officials moved the men from different facilities, including some with large outbreaks, without first testing them, transporting them on crowded and poorly ventilated buses. They then mixed them at the Adirondack Correctional Facility in Ray Brook, New York, without quarantining them. Since then, officials have tested the men only sporadically, even after some were exposed to the virus inside the prison, and have taken minimal steps to promote hygiene and social distancing. When a man incarcerated at the facility was discovered to have contracted the virus, prison officials ordered the guards who had come in contact with him to quarantine at home for two weeks. But they took no measures to test and isolate the incarcerated people with whom he had also been in close proximity.

The moves to Adirondack — which state officials did not announce publicly beyond a brief mention on the website of the Department of Corrections and Community Supervision, or DOCCS — were detailed in a class action lawsuit filed on Friday on behalf of the nearly 100 men who were transferred to the prison, all of whom are over the age of 60 and have underlying health conditions. The lawsuit further includes claims on behalf of a subset of Adirondack’s population who also have a disability recognized under the Americans with Disabilities Act.

In the complaint, attorneys with the Legal Aid Society and the civil rights firm Relman Colfax accuse state officials of effectively creating “a prison nursing home” without adopting the precautions this approach would require, and of “creating a heightened risk of spreading infection and undermining the ability to treat this particularly vulnerable group.” In doing so, they claimed, the state violated constitutional protections against cruel and unusual punishment and discrimination as well as disability laws. The lawsuit calls for the state to cease all future transfers to Adirondack until officials have addressed conditions there and brought the prison and transfer protocols in compliance. But attorneys for the men incarcerated at Adirondack also argue that releasing them is the single safest solution.

“By design, incarcerated people transferred to Adirondack are old, infirm, and unthreatening,” the complaint reads. “These are precisely the people that DOCCS should prioritize releasing in light of the COVID-19 crisis.”

The lawsuit, which accuses the state of “deliberate indifference” to the safety of the men incarcerated at Adirondack, comes as New York is in the grips of a second wave of the pandemic, which has once again spread widely through the state’s prisons, with three news deaths reported just on Wednesday. At least 27 incarcerated people have died so far in the state after contracting the virus in prison, according to official figures compiled by Legal Aid. Four parolees and six prison staff members have also died of the virus. Some 3,459 people incarcerated in the state have tested positive so far, though New York maintains a lower infection rate per capita than many other states.

The lawsuit also comes as advocates are lobbying legislators to reform the state’s parole system and as pressure mounts on Gov. Andrew Cuomo to release vulnerable people through clemency or other means. Dozens of court claims have been brought on behalf of individuals and groups of people incarcerated in the state seeking their release — with mixed success. Ten people were released on medical parole since March, and Cuomo has recently granted clemency to 21 more. As of Thursday, 3,552 people were released early from New York prisons because of the pandemic, though advocates say that is far too little.

“The conditions at Adirondack are totally inadequate to protect people.”

“Essentially, the state started transferring people halfway through the ongoing pandemic rather than releasing them,” Stefen Short, a supervising attorney at Legal Aid’s Prisoners’ Rights Project who is representing the men incarcerated at Adirondack, told The Intercept. “The department is engaging in very unsafe practices in transferring people to Adirondack, including not quarantining people upon arrival, not testing people before they’re transferred, shunting people directly into general population without any type of measures to ensure they don’t have Covid or have not been in contact with the anyone who has Covid. And the conditions at Adirondack are totally inadequate to protect people.”

Thomas Mailey, a spokesperson for DOCCS, wrote in an email to The Intercept that there are currently 93 men incarcerated at Adirondack, none of whom have recently tested positive for Covid-19. He added that the transfers were intended to reduce density in other facilities with a high number of positive cases. Buses moving incarcerated people between facilities travel at half capacity, he said, and individuals traveling are screened and receive temperature checks.

“Throughout the COVID-19 public health emergency, the Department of Corrections and Community Supervision has worked in consultation with the NYS Department of Health (DOH) and followed facts and science to protect staff and the incarcerated population,” he wrote. “The entire incarcerated population has been tested for COVID-19 and an asymptomatic testing program is currently underway.”

Mailey did not specify when the prison’s population was tested or whether it was tested more than once. Cuomo’s office declined to comment on the record.

A Death Sentence

In court filings, the men transferred to Adirondack described communal spaces such as dorms, mess halls, and bathrooms where social distancing was impossible. They denounced a dearth of hand sanitizer and masks months into the pandemic. And they reported weekslong wait times to see a doctor and guards not wearing masks or wearing them around their chin.

Jose Leon, a 62-year-old with a long list of medical conditions, including hypertension, colitis, and a history of heart attacks, has become so scared of contracting the virus at the prison that he has stopped going to the mess hall for meals, his sister, Jeanette Velazquez, told The Intercept. Because of a policy at Adirondack that prohibits residents from eating food from the mess hall in their dorms, that means that Leon is only able to eat food he has himself purchased from the commissary. (At other prisons in the state, eating in cells is allowed so that people are not forced to choose between buying food and risking exposure.) Velazquez also said that Leon, who used to call her a couple times a day, is calling her far less because he is trying to avoid the prison’s communal areas. Mailey told The Intercept that staff are required to wear masks and that the DOCCS Office of Special Investigations has been performing compliance checks. He added that individuals eating in the prison’s mess hall are seated three seats apart.

“He’s very nervous, and he’s trying to stay away from people, places, and things,” said Velazquez. “He doesn’t go to the infirmary. He’s afraid to go anywhere. He’s just been isolated from everything. He’s skipping meals, he’s staying away, he doesn’t really call me as much as he would want to, to stay away from the phone.”

“It’s like giving them a death sentence.”

Leon, who has spent the last 16 years in prison, was denied parole in 2019. Earlier in the pandemic, Velazquez had hoped he would be among the elderly people with health conditions who officials said they would consider for early release. Instead, he was moved to Adirondack, where prison staff handed him two paper masks that he has been rewashing for months. According to court filings, he was recently denied a colonoscopy necessary to monitor his colitis because the prison had not conducted sufficiently recent Covid-19 testing for the hospital to admit him for the procedure.

“It’s unnecessary, what’s the purpose of that?” Velazquez said, referring to the continued incarceration of her brother and other elderly, sick people who pose no threat to public safety. “Why are they doing it? It’s like giving them a death sentence right now, with what’s going on.”

Jose Hamza Saldaña, director of the Release Aging People in Prison Campaign, or RAPP, a group of formerly incarcerated advocates and their families that is also a party to the lawsuit, echoed that sentiment.

“Everybody agrees that these men and women are the least likely to ever commit another crime. For the most part, they’ve been mentors,” said Saldaña, who was released in 2018 after serving 38 years in New York prisons. “It’s really hard for me to really imagine what could stop this governor from releasing these men and women, who will probably be a benefit to society as they enter their home communities, as opposed to let them die.”

Illustration: Cam Floyd for The Intercept

Deliberate Indifference

In late spring, DOCCS published a “Covid-19 Reopening Plan” fact sheet on its website. In a bullet point, the department indicated that it planned to move individuals over 60 and with medical conditions to Adirondack, a facility that until that point had housed incarcerated minors. In an updated version of the document, DOCCS explained the move by noting that “the North Country has an extremely low infection rate,” a reality that has since changed. “There was one bullet point in this five-page document,” said David George, who also works with RAPP and was monitoring the site for any update to share with incarcerated people and their families. “There was no public announcement, there was no press release.”

Indeed, the lack of information from prison officials has been a consistent issue throughout the pandemic, attorneys say. “We’re begging the department for information about what it’s doing and what it intends to do to protect people from Covid,” said Short. “And the department won’t tell us anything.”

The attorneys say that DOCCS declined to answer their questions about the move to Adirondack, including whether the decision had been informed by public health experts. “We specifically asked, ‘Have you consulted with experts on this? Who has been informing you throughout the process on whether or not there’s a way to do these transfers safely, whether or not there’s a way to group vulnerable people together safely,’” said Short. “And they won’t answer that either.”

The complaint filed on Friday argues that department officials ignored the most basic public health guidelines, even as the high risk of spreading the virus by transferring and mixing people without screening and testing them was well known at the time of the transfer.

As The Intercept has reported before, prisons and jails, where social distancing is virtually impossible, quickly became epicenters of the pandemic. According to the complaint, the virus attack rate, or the proportion of those exposed to the virus who ultimately contract it, is as high as 80 percent in prison, as opposed to 20 to 30 percent in the general population. And the virus is deadlier inside prisons than it is outside them, making the death rate for those incarcerated three times higher than for the general population.

Yet the pandemic has only exacerbated what was already a public health crisis in U.S. prisons, where a disproportionate number of people are elderly and suffer from health conditions like hypertension, diabetes, and asthma. According to the complaint, the physiological age of an incarcerated person is estimated to be 10 to 15 years more than their actual age, and chronic failures in prisons’ medical care systems have long gone unaddressed. Adirondack is more than two hours away from the closest hospital with the capacity to accept people from prison, the lawsuit claims, and two small local hospitals that don’t have the required security features would quickly be overwhelmed in the event of an outbreak at the prison.

Attorneys argued that officials ignored guidelines issued to correctional facilities by the Centers for Disease Control and Prevention and warnings by dozens of experts calling on state officials to release incarcerated people to “save lives.” And they said that prison officials moved people to Adirondack who had come from facilities with large outbreaks underway. Leon, for instance, was transferred over the summer from Otisville Correctional Facility, where almost 10 percent of the prison’s population had tested positive for the virus by the end of July. He was not tested before transfer. Many others were taken to Adirondack from Fishkill Correctional Facility, where five people had died of the virus by July. The hourslong transfers took place on crowded and poorly ventilated buses. During one such trip from Fishkill, a man started coughing and exhibiting flu-like symptoms, but while he was taken off the bus, none of the people he had been traveling with were tested or quarantined once they reached Adirondack, according to the lawsuit.

The men incarcerated at Adirondack are believed to have last been tested between September 30 and October 1, according to the lawsuit. When a man did test positive on that occasion, he was isolated, but none of the men he had been mingling with in his housing unit were screened or tested after he tested positive. And while three staff members who had been in close proximity with him during an hourlong grievance hearing in a room with no windows were ordered to quarantine at home for two weeks, two other incarcerated men who were also there were neither tested again nor isolated after the exposure.

“There was absolutely no effort to stop the spread within the facility,” said Rebecca Livengood, an attorney at Relman Colfax who is representing the men incarcerated at Adirondack. “In the event of an outbreak, they have no processes in place that would contain or mitigate the spread at all.”

Political Will

Before the pandemic, Adirondack housed about 13 incarcerated youth, and there were plans to turn the 500-bed prison into a drug treatment facility. As about 17 prisons across the state have closed over the last decade, Cuomo has come under pressure from representatives of parts of the state that rely heavily on prisons for jobs. Advocates are questioning whether the transfer of elderly people to Adirondack was part of an effort to keep the prison filled — even though Cuomo has long maintained that “incarceration is not an employment program.”

“These are economic anchor institutions in economically depressed areas of the state,” said Short, noting that it’s common for the state to repurpose the most remote facilities multiple times in an effort to keep them utilized. “It certainly doesn’t surprise us that the department is trying to keep those economic anchor institutions functioning.”

It is not clear how long the people who were transferred to Adirondack will remain there, but attorneys argue that the men moved to the prison have lost access to programs and access to adequate medical care, and that in many cases they have been moved farther away from their families. They and their loved ones have received little information throughout the process, a reality that attorneys say is indicative of the state’s haphazard approach to the handling of the pandemic in prisons. Even months into the crisis, testing in New York prisons has lagged, as has information about prison outbreaks.

“When you look at how Cuomo has handled Covid statewide, for folks who aren’t incarcerated, he has really modeled himself as a leader in taking a testing-based, science-based approach, and being very aggressive,” said Livengood. “That response is really lacking in prisons.”

In the absence of bolder measures from the governor, advocates are lobbying for a number of prison reform bills currently before state legislators, including the Elder Parole bill and the Fair and Timely Parole Act, which would give elderly incarcerated New Yorkers a chance at release and directly impact many of the men currently at Adirondack.

“This is really a matter of political will,” said RAPP’s George. “Time and time again, Governor Cuomo and the state prison system have just failed, flat out, incarcerated people, their families, and their communities. And as a result, lawmakers in New York really need to step up.”

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